On the cusp of life, and of law

Half a million embryos sit in clinic freezers in the U.S. Now infertility patients privately steer their fates, but that may change in some states.

Six years of frustration and heartbreak. That's how Gina Rathan recalls her attempts to become pregnant.

Finally, she and her husband, Cheddi, conceived a daughter, now 3, through in vitro fertilization. About a year later, she became pregnant with a second child, naturally. Their family was complete.

Then, a year ago, the Fountain Valley couple received a bill reminding them that their infertility journey wasn't quite over. They owed $750 to preserve three frozen embryos they'd created but hadn't used.

"I don't see them as not being life yet," says Gina Rathan, 42, a pharmaceutical sales representative. "I thought, 'How can I discard them when I have a beautiful child from that IVF cycle?' "

Many other former infertility patients also appear to be grappling over the fate of embryos they have no plans to use: An estimated 500,000 embryos are in cryopreservation in the United States.

As with the Rathans, this unexpected conundrum often arises well after the infertility crisis has passed, triggering impassioned and highly personal debates about the science and ethics of human life. The discussion boils down to a fundamental question: What is this icy clump of cells smaller than a grain of sand?

Across the country, people with less personal stakes in the matter are asking that question as well.

Colorado voters will decide in November whether to amend the state's constitution to assert that an embryo is a person. Indiana lawmakers have proposed legislation that would allow abandoned embryos to be adopted for implantation by another couple. New Jersey legislators have moved to allow unused embryos to become wards of the state. And Georgia and West Virginia are considering legislation that would give embryos "personhood" status.

Although these proposals are sponsored in large part by abortion opponents, infertility patients nationwide -- whose feelings about abortion run the gamut -- are finding themselves ensnared in a debate about when life begins.

"They are in the middle of this ideological war, although they may not be aware they are in the middle of a war," says Renee Whitley, co-chairwoman of the national advocacy committee for Resolve, an organization supporting people with infertility. "This is the politics of embryos."

Couples with leftover frozen embryos have three choices: discard them, donate to research or donate to another couple for pregnancy. The default option is to leave the embryos in a vat of minus-310-degree liquid nitrogen, paying for the storage and deferring the decision; in some cases, their children or other relatives may someday have to decide what to do with a most peculiar inheritance.

"This is taking a pretty private decision and placing it squarely in the public's eye," says Nanette Elster, director of the Health Law Institute at DePaul University in Chicago.

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Freezing excess embryos is a common strategy for in vitro fertilization. To make embryos, a doctor injects a woman with potent hormones to produce eggs. These are then harvested in a surgical procedure. The eggs are mixed with sperm in the laboratory, and some of the developing embryos are transferred into the uterus. A single cycle with fresh embryos costs more than $15,000, often not covered by insurance.

Subsequent attempts at pregnancy are less costly if frozen embryos are on hand, and the supply of extras spares a woman another round of harsh drugs to produce eggs. About half the people who undergo in vitro fertilization end up with one or more frozen embryos.

But no one can predict how many embryos will be produced and used. And as the success of the treatment has improved over the last two decades, doctors are now transferring fewer embryos to avoid multiple births.

Meanwhile, the glut of stored embryos grows and more families find themselves in a position some liken to playing God.

"They are wrestling with how to think of embryos. A person? Nothing? Something in between?" says Dawn Davenport, an adoption researcher who has an online radio show and a website called Creating a Family.

Infertility clinics report that they lose contact with about 15% to 25% of families with frozen embryos. According to the American Society for Reproductive Medicine's guidelines, a clinic can consider embryos abandoned and dispose of them if five years have passed without contact with the couple and if significant efforts have been made to reach the couple. But few doctors dispose of the embryos, says Dr. Richard J. Paulson, chief of reproductive endocrinology and infertility at USC's Keck School of Medicine.

"To my knowledge, no one in the United States has ever done that," he says. "We're all paranoid that a couple will show up the next day and say they want their embryos."